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Discretion and Deportation: What the Obama Policy Means for Immigrants

September 12, 2011 - 10:54am — jesposito

Last month, when President Obama laid out a plan to suspend deportation proceedings for DREAM-eligible youth, military family members, crime victims, and immigrants with strong family ties, he took his first concrete step to respond to the increasingly vocal opposition to his administration’s immigration enforcement policies and practices. The new policy establishes a working group comprised of Department of Homeland Security and Department of Justice officials who will review 300,000 pending deportation cases to determine whether each case falls within the Administration's "enforcement priorities." The administration will halt cases that it determines merit an exercise of discretion and will allow those individuals whose cases are suspended to apply for work authorization.

This is a significant step for immigrants who qualify, and, while it won’t provide permanent legal status, it will bring individuals out from under the threat of imminent deportation. And given the current political climate (when restrictionists claim the policy amounts to a backdoor “amnesty”, and put forth ever more punitive measures), it did take courage for the president to move beyond mere words of support for immigration reform to real action that, while limited, does offer some relief. For those individuals in deportation proceedings who are deemed low priority, whose cases are suspended, and who are given the opportunity to apply for work authorization, this use of prosecutorial discretion will have a significant impact. The number of people who will actually benefit, however, remains to be seen. The reality is, this policy simply begins to restore a level of prosecutorial discretion in immigration cases that has been increasingly lacking since the passage of punitive immigration laws in 1996. Prosecutorial discretion is, after all, at the heart of our justice system.

But the policy affects only a small number of immigrants; it does little to help the remaining 11 million undocumented immigrants who are not already in deportation proceedings. While the administration says it will not pursue deportation against “low priorities,” they won’t be able to apply for work authorization and will remain in the shadows. And the policy raises serious questions about where to draw the line between “low priorities” and “high priorities”—the latter of which will be prosecuted more vigorously. How loosely or tightly drawn will the definition of high priority be, especially when DHS has a stated goal of deporting 400,000 immigrants a year? Priorities shift when you need to meet what amounts to a quota.

So how will the new policy play out? For example, how will the administration’s renewed commitment to prosecutorial discretion be applied in cases involving ex-offenders who have long been rehabilitated and leading law-abiding lives? Every day we see ex-offenders who have turned their lives around and made meaningful contributions to our communities. In these cases, do prior convictions automatically mean that these individuals will be pursued as high priority?

Today, after the deportation of more than one million people under the Obama Administration, a case-by-case review of 300,000 pending cases is a welcome first step, but falls short of the kind of reform needed to bring reason and fairness to the immigration system. Ultimately, Congress needs to act. In the meantime, the policy is just one of several actions that are in the President’s power as chief executive to take. As a good next step, the president can, for example, halt programs like Secure Communities that use local law enforcement to identify individuals for deportation. When the governors of NY, MA, and IL all announced in recent months that they would not participate in the program—concerned that it undermines local law enforcement’s ability to protect public safety and that it gives rise to racial and ethnic profiling (among other concerns)--the administration’s response was to argue that the program is mandatory and does not require state authorization to be implemented across the country; it doesn’t matter what individual governors say or do.

By evaluating cases of those individuals currently in deportation proceedings, the President has implicitly acknowledged the injustices occurring in the immigration system, and, indeed, the disconnect between what the administration claimed all along (that it was targeting those who posed a threat to public safety) and what it was actually doing (deporting anyone it could). But it remains to be seen how much discretion the administration actually exercises in future enforcement actions, and it will be important to closely monitor the working group tasked with reviewing pending cases. And it will be critical for the White House to continue to take steps that undo some of the damage of our broken immigration system. Undoubtedly difficult in the current climate, when Congress is paralyzed by obstructionist forces and the political backlash is likely to be fierce. But inaction in the face of such challenges amounts to acquiescence, which immigrant communities and the nation at large can ill afford.